Under California Penal Code 476, every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in Section 186.9 is guilty of forgery.
Elements:
In order to be convicted of forgery (check fraud) under PC 476, the prosecution must prove all elements of the crime beyond a reasonable doubt.
1. The defendant must make, pass, utter, or publish a written instrument as a payment,
2. The defendant must have intent to defraud another person,
3. The defendant must have knowledge that the instrument is fictitious or altered.
4. Note, that this crime can be prosecuted as an “attempt” crime. An attempt occurs when a person comes dangerously close to carrying out a criminal act, and intends to commit the act, but does not in fact commit it. In this case, a defendant can be charged for a simple possession of the instrument if he/she still possessed the intent to pass the written instrument.
Examples
Writing a forged check or forging a payor’s name on the check. Changing the amount written on the check.
Most Common Defenses
Consent: Permission given by one person for another person to take an action that would normally be considered wrongful or illegal. In some cases, the person making the payment could have consented for you to write in your name on the check or change the amount (alter the check).
No intent to defraud: The most common example would arise from people having special relationships. For example, an employee might reasonably believe that he/she has the power to alter/change checks due to his/her position level. Spouses often reasonably and honestly believe that they have the power to act on behalf of their spouse as it relates to writing/altering checks.
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